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June 27, 2016

Supreme Court Denies Certiorari in Sequenom v. Ariosa

The Supreme Court issued an order this morning denying certiorari in Sequenom, Inc. v. Ariosa Diagnostics, Inc. Patent Docs will provide more analysis of the Court's denial of certiorari in a subsequent post.

Comments

As Roger Meyers Jr. said, "The screwballs have spoken."

If I had any doubts before, I have none now: nothing is going to change until a member of SCOTUS or one their families dies from a disease for which no treatment was commercialized due to lack of IP protection.

Any bets on which country is going to file the complaint at the WTO for lack of adequate patent protection in the USA?

"[N]othing is going to change until a member of SCOTUS or one their families dies from a disease for which no treatment was commercialized due to lack of IP protection."

I doubt that even this sort of occurrence would turn the tide on the recent perversion of §101. Really, there are only two things that can turn the tide: (1) a significant change in the composition of the court (don't hold you breath on this one, because no president is going to choose, e.g., Justice Breyer's replacement on the basis of the potential successor's views on IP law); or (2) statutory amendment.

One can imagine all sorts of scenarios that lead to #2, but my favorite is where some other country hauls us in front of the WTO for failure of compliance with TRIPS. Here's hoping your last sentence is prophetic.

Given the effort that many people have put into this appeal and the quality of the many briefs filed, the outcome can only be described as a devastating disappointment.

The opportunity for useful clarification of the law has been lost, and the resulting setback may take years, if not decades, to reverse.

The sad, but nevertheless underlying, fact is that Sequenom is WRONG, both factually and more importantly from a legal standpoint. That will be very difficult for us all to live with. It has confirmed a set of legal rulings which are WRONG, inadequately reasoned and PROFOUNDLY UNHELPFUL AND DAMAGING. Not an easy situation for any of us to live with.

I would bet on the "decades" end of that spread. It is hard to imagine a better vehicle than Ariosa with which the SCotUS could have reigned in the recent excesses of §101 jurisprudence. I had hoped that Ariosa would be to Mayo as Diehr was to Flook. The fact that they were not willing to take Ariosa, however, tells me that they do not want a course correction, so one cannot be expected until such time as the composition of the court has changed significantly. That will take a lot of time.

There was room for believing that the problem was inexperienced judges given briefs written at a high level but not concentrating on essentials, so that basics might have slipped through the cracks. But if you take the petition and the amicus briefs as a collective effort, that cannot be said in the present petition and the critical arguments were presented in authoritative detail. You have only to look at the names on many of the amicus briefs to realize the rare assembly of skill and knowledge with which the decision-making process was supported.

In these circumstances, the outcome is almost impossible to understand and reflects no credit on US jurisprudence. Indeed, Skeptical you told me so. My problem was in having more confidence in the rational decision-making capacity of US judges than proved to be the case.

"In these circumstances, the outcome is almost impossible to understand and reflects no credit on US jurisprudence."

I agree 100%. Judge Linn concurred with the panel opinion, but wrote separately to say that Mayo is both over-reaching and unworkable in actual practice. Then Judge Lourie (joined by Judge Moore) wrote a concurrence to the denial of en banc review to make the same point. Even Judge Dyk, who is a real fan of Mayo, admitted that the text of Mayo is probably an over-reach and will need to be revisited some day (although he did not want Sequenom's case to be that occasion for revisiting).

In other words, let's set aside for a moment the combined eminence of the various amici supporting this cert petition. Just looking at the *federal judges* urging the SCotUS to take this case, I cannot imagine a more clear statement that a case deserves cert.

If the SCotUS cannot see clearly the importance of these issues in this case, then there really is no hope for the courts to correct their own mistakes. Only Congress can save the patent system at this point. Unfortunately, it will likely be a while before they take notice.

"In other words, let's set aside for a moment the combined eminence of the various amici supporting this cert petition. Just looking at the *federal judges* urging the SCotUS to take this case, I cannot imagine a more clear statement that a case deserves cert."

There is another way, shown to us by Judge Newman in BASCOM: do the 102, 103 and 112 analysis as such, without conducting a separate 101, while SAYING that your result amounts to a conclusion under 101 as well. That is, side-step Alice, Myriad and Mayo while talking as if you're following the SCOTUS line on this. That's what I would have expected the CAFC to do in the not-so-distant past. But now, Lourie, Linn and the rest don't have Judge Newman's spine.

My impression is that SCOTUS put this case into its "Too Difficult" basket. Of course, the justices would never admit to such a thing. Instead, they trot out the usual "The court does not shrink from...." mantra. Sad.